Ex-midshipman ends discharge fight court told to move soon on gay ban

WASHINGTON -- Joseph C. Steffan, a former Annapolis midshipman who is gay, is ending his six-year court battle to get a Naval Academy diploma and ensign's commission and will not take the dispute on to the Supreme Court, he and his lawyers said yesterday.

Their decision postpones for at least a year any review by the Supreme Court of the constitutionality of the military services' long-standing policy of discharging almost all gays and lesbians.

In a related development yesterday, however, a federal appeals court in New York ordered the immediate speed-up of a new constitutional challenge to the ban. This one tests the Clinton administration's version of the ban: the so-called "don't ask, don't tell, don't pursue" policy adopted by the Pentagon and written into law by Congress.

Under the Clinton ban, individuals who keep secret their gay or lesbian sexual preferences can remain on duty. If they say they are homosexual, however, they can be discharged unless they prove they are, in fact, not homosexual.

The appeals court ordered a federal judge in Brooklyn, N.Y., to make a decision by March 31 in the case against the Clinton approach. In the meantime, the appeals court said, the military may not move to discharge the six gay and lesbian service members who filed that case.

But the military remains free in the meantime to enforce the Clinton policy against other gays and lesbians now on duty. The timetable set by the appeals court means that the case could reach the Supreme Court later this year or early next year, in time for a decision by the justices in 1996 at the earliest.

Mr. Steffan was dismissed from the Naval Academy in 1987 under a since-abandoned policy that almost totally banned gays from serving in the military. That approach was abandoned last February in favor of the compromise policy endorsed by President Clinton.

Six weeks before Mr. Steffan was to have graduated from the Naval Academy as a much-honored midshipman, he was discharged because he said, "Yes, sir" when asked "Are you a homosexual?"

Since late 1988, his constitutional challenge to that dismissal has been unfolding in the courts, becoming one of the most prominent in a series of cases in recent years against the military's policy of treating gays and lesbians differently from others in the armed forces.

His case also was further ahead than any other lawsuit now pending on the issue, and thus appeared likely to be the first to get to the Supreme Court after Mr. Steffan lost in the latest round in lower courts. Following a 7-3 ruling by a federal appeals court late in November upholding the previous military policy, Mr. Steffan's only option was to go on to the Supreme Court.

"It would have been nice to try to see if I could be personally vindicated, but that's not the most important question," he said in a telephone interview from Newark, N.J., where he is now a law clerk to a federal judge.

He said he and his lawyers had decided that, as a matter of legal strategy, his case was not the right one and this was not the right time to draw the Supreme Court into a constitutional conflict.

Beatrice Dohrn, legal director of the Lambda Legal Defense Fund in New York City, said that lawyers working on the Steffan case and Mr. Steffan had decided that even a victory for him in the Supreme Court might have been only a "pyrrhic" one -- one with heavy losses and little strategic gain.

She noted that Mr. Steffan's case involved only the constitutionality of a military policy no longer in force.

She and Mr. Steffan argued that Mr. Clinton's new policy has "greater vulnerability" to constitutional attack than the old policy.

"In some ways, I feel a sense of loss," Mr. Steffan said after deciding to bring his own case to a close. "I have to accept realistically that I will never have my degree from the academy, and will never be reinstated" in the Navy. He said he would finish his year-long clerkship, then begin practicing law in a private firm, probably in Hartford, Conn., where he went to law school.

The end of the Steffan case now shifts the focus of the constitutional issue to the Clinton policy. That is directly at issue in the case that the 2nd U.S. Circuit Court of Appeals in New York City put on a faster timetable yesterday.

Because of the significance of the policy, the appeals court said, the federal judge who is handling the test case must decide it promptly, and all at once, rather than piecemeal. "We think that the important questions raised in this case should not be left unanswered by the courts any longer than necessary," the three-judge panel commented.

The case thus goes back to U.S. District Judge Eugene H. Nickerson in Brooklyn, who had declared last April in an earlier stage of the case that the new policy on gays raises "serious" questions about its constitutionality.